Posted on 06/05/2006 12:35:33 PM PDT by neverdem
Guns are the center of the Second Amendment to the U.S. Constitution.
While the topic is clear, the amendment is fraught with ambiguity and has been subject to conflicting interpretations and often acrimonious debate.
The sharp conflicts are everyday discussion topics, as gun-control advocates claim that firearms have a pivotal role in societal violence, and firearm enthusiasts clamor that restricting guns tramps on the intent and spirit of the Second Amendment.
One of the strengths of the Constitution is its inherent flexibility. The framers understood that the document would be modified over time if it was to remain relevant. A Constitution that embraced precise concepts of the 18th century could not necessarily be applicable to a society dependent on cell phones and Blackberrys. This does not make life easy for citizens or jurists, and brings to mind Winston Churchill's famous observation that democracy is a terrible system of government, but all the others are worse.
The murky language of the Second Amendment has created a battle line between both sides of the packing-heat or pack-them-away debate.
"No one has ever described the Constitution as a marvel of clarity, and the Second Amendment is perhaps one of the worst drafted of all its provisions," noted Sanford Levinson of the University of Texas at Austin School of Law in 1989 in "The Embarrassing Second Amendment" in the Yale Law Journal.
The amendment is one sentence comprising two clauses, which are the main cause of conflict.
The opening clause states: "A well regulated militia, being necessary to the security of a free State." No other amendment has a similar clause, which seems to ascribe its purpose, according to Levinson.
Gun control groups consider the clause precise and view the amendment as a collective right of the states to form militias.
The rest of the amendment's sentence, "the right of the people to keep and bear arms, shall not be infringed," loads the interpretation of pro-gun groups' belief that the Second Amendment grants citizens an absolute right to own firearms.
The word "militia" is a stumbling point. Written in a time when the tyranny of King George III was still a raw memory, it could be viewed as a right to arm military forces. However, in the 18th century, most adult males were part of a militia, so perhaps the framers used the word to imply everyman.
The Supreme Court has not fully interpreted the Second Amendment, but courts have agreed that it allows reasonable firearm restrictions.
The furious debate around the Second Amendment has prompted groups like U.S. Constitution Online (www. usconstitution.net) to propose replacing the Second Amendment with "a truer representation of how our society views our freedom to bear arms," by removing "militia" and focusing the amendment to ensure the "right of the people to keep arms reasonable for hunting, sport, collecting and personal defense."
As our nation grapples with the issue, we posed questions surrounding the Second Amendment to two recognized Tucson attorneys for whom the Second Amendment is integral to their practice:
Elliot A. Glicksman, who frequently pursues civil remedies for victims of crimes and represents crime victims, told us that "in a perfect world, guns would be treated like cars; people who own guns would have to take a proficiency test."
David T. Hardy, a federal firearms law authority, has written law review articles and a book, "Origins and Development of the Second Amendment: A Sourcebook," and co-authored "Michael Moore Is A Big Fat Stupid White Man" and "This Is Not an Assault" about the siege on the Branch Davidian compound outside Waco, Texas.
Star: Does the Second Amendment protect the individual's unlimited right to own a gun or other weapons? Or is it a collective right of the states and government to maintain militias?
Hardy: Modern scholarship accepts that the Second Amendment was meant to protect an individual right. Perhaps the best historical evidence is a 1789 newspaper explanation of the Bill of Rights, a comprehensive contemporary explanation, that refers to protecting citizens' "private arms." James Madison, drafter of the Bill of Rights, wrote a thank you letter to the author. Further, when the first Senate considered the Bill of Rights, there was a motion to make it a right to bear arms "for the common defense." The Senate voted down the idea.
Madison was trying to allay the fears of two groups. One feared that Congress would neglect the militia; the other feared that Congress might try to disarm individuals. Madison had to resolve both fears. This is why the amendment has two clauses.
Glicksman: The only U.S. Supreme Court case I'm aware of is "U.S. v. Miller," which held that it was a collective, not an individual, right.
Star: According to the Brady Center to Prevent Gun Violence, in U.S. v. Miller (1939), "the High Court wrote that the 'obvious purpose' of the Second Amendment was 'to assure the continuation and render possible the effectiveness' of the state militia. The Court added that the Amendment 'must be interpreted and applied with that end in view.' "
Since Miller, the Supreme Court has addressed the Second Amendment in two cases: In Burton v. Sills, (1969), the Court upheld New Jersey's strict gun-control law, finding the appeal failed to present a "substantial federal question." And in Lewis v. United States (1980), the Court upheld the federal law banning felons from possessing guns, finding no "constitutionally protected liberties" infringed by the federal law, according to the Brady Center."
Star: Bazookas and missiles are "arms." Does the Second Amendment protect an individual's right to own them? Glicksman: Good question. Let's go one further. How about nuclear weapons? Why should I, a legitimate nuclear weapons collector, be punished because terrorists misuse them. Punish the evildoer. Remember, nuclear weapons don't kill people. Terrorists misusing nuclear weapons kill people.
Hardy: All rights have rational limits. We can recognize "freedom of speech" without having to protect blackmail and threatening phone calls.
There are various theories as to how to establish limits. Akhil Amar, a professor at Yale Law School, suggested that, since the original purpose was to allow the people to deter tyranny, a weapon that allows one person to become a tyrant through terror would not be protected.
I like to compare it to regulation of the press, which was known to the Bill of Rights framers, versus regulation of electronic broadcasting, which they could not foresee, would require licensing of frequencies to work. The framers could foresee rifles and pistols but not special problems posed by antiaircraft missiles or nuclear bombs.
Star: Is the regulation of gun ownership, such as licensing and registration, a violation of the Second Amendment? Why or why not?
Hardy: It depends upon the regulation. What the framers clearly meant to take off the table is confiscation or prohibition. I see registration and licensing as facilitating that. It's hard to see how registration itself prevents crime. Even if a criminal did register his gun, he is unlikely to leave it with the victim. Glicksman: The First Amendment is not absolute. Some speech — yelling fire in a crowded theater — is not protected.
Should the Second Amendment be absolute? It can't be. Or else we couldn't prohibit felons from possessing weapons and I could take a gun with me on a plane.
Star: With the right to own a firearm, is a there an implicit responsibility to safely handle the firearm? Hardy: Everyone who has a gun and was not trained how to safely use it should obtain such training now. Every firearm accident that I have ever seen involved violation of not one, but several, simple safety rules. Gun safety is far simpler than automobile safety, but both require knowledge.
Star: A woman who carries a gun in her purse is required to have a concealed weapon permit. A person wearing a sidearm may be asked not to enter a place of business because of the sidearm. Are those restrictions on Second Amendment rights?
Hardy: The permit requirement is a restriction — courts have upheld those because it's a very moderate restriction; it doesn't restrict keeping, and only one form of bearing. A private business on the other hand isn't bound by the Bill of Rights.
Glicksman: Limiting people from having weapons in certain places like a bar or on a plane have always been upheld.
The Tucson City Council banned guns from city parks a number of years ago. The ordinance was challenged ("City of Tucson v. Rineer," 1998), but it was not challenged on Second Amendment grounds. Instead, it was challenged on the claim that the city couldn't regulate guns and on the amendment in the Arizona Constitution, not the U.S. Constitution. The City of Tucson won. The court held that it could ban guns from parks. Subsequently, the state Legislature enacted a statute that said only the state, and not individual cities, could regulate guns. If the Second Amendment grants an individual unfettered right to bear arms, why wasn't this ordinance challenged on Second Amendment grounds?
Star: Is there anything else you feel that our readers should know about the Second Amendment?
Hardy: One fascinating aspect of the American right to arms is not the Second but the 14th Amendment (1868). The original Bill of Rights only restricted the federal government (some states, for example, had established churches into the 1830s).
After the Civil War, Congress proposed, and the people ratified, the 14th Amendment, which forbade States to infringe the "privileges and immunities" of U.S. citizenship.
The congressional debates make it clear that a motivating factor was that the former Confederate states had passed the "Black Codes," which forbade blacks to own guns, and were disarming black Union veterans to make them vulnerable to Ku Klux Klan terror.
Yale professor Amar said that the Second Amendment vision was that "when guns are outlawed, only the government will have guns," and the 14th Amendment vision was "when guns are outlawed, only the Klan will have guns."
He sees the Second Amendment as protecting an individual but political right to resist governmental tyranny and the 14th Amendment as making this the "quintessential individual right," the right to defend one's home against criminal attack.
It's sometimes argued that we have a changing constitution. I find this difficult to accept: Why else would amending it require a super majority (two-thirds of Congress and three-fourth of the states)?
U.S. Constitution: Second Amendment
A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.
Editor's note: The United States Constitution lays down the structure of the government and separates the powers among three distinct branches— the Legislative, Executive and Judicial. The landmark document was signed Sept. 17, 1787. Subsequently, the Bill of Rights, the first 10 amendments to the Constitution, went into effect Dec. 15, 1791.
The Constitution imposes a series of checks and balances among the branches of government. The Bill of Rights guarantees that government cannot take away rights from its citizens and protects citizens from excessive government power.
On May 21, we presented a discussion on the First Amendment. Based on positive reader reaction to that story and suggestions that we continue civics discussions, we'll be exploring the entire Bill of Rights in the next few weeks. Read the May 21 article at www.azstarnet.com/opinion.
Today: the Second Amendment.
Editorial Writer Sam Negri contributed to this commentary. Contact Editorial Page Editor Ann Brown at 574-4235 or annbrown@azstarnet.com.
Here's my view on this:
The government knew at some future date it was going to have to call upon the people to help clean out domestic enemies. But in order for that to work, it had to make sure the people could arm themselves at a moment's notice.
If they would have passed a law forcing everyone to acquire a personal armory, the people would have balked. You know, as a child would balk by nature against force of any kind.
So how to resolve that?
Reverse psychology, of course.
Hence, gun laws, gun restrictions, gun bans out the ying yang, knowing that we would balk at being forced to be without arms.
Think about it.
Everytime new gun legislation hits the front burner, everyone runs out and stocks up on ammo and buys another gun they didn't want.
Of course, the government knew that a large percentage of the folks were sheeple and couldn't be counted on to do much in the way of protecting themselves or the neighborhood anyway, and would probably hide in their cellars during a real emergency.
But it knew it could count on a small percentage of well-armed, dedicated, professional, fearless individuals who could fill in the gap at an instant's notice without having to spend a penny.
Bahstids! I'm gun-poor!
;>
Government is going the wrong way. It cannot be allowed to go too much further or we are REALLY gonna be in the soup...
"No one has ever described the Constitution as a marvel of clarity, and the Second Amendment is perhaps one of the worst drafted of all its provisions," noted Sanford Levinson of the University of Texas at Austin School of Law in 1989 in "The Embarrassing Second Amendment" in the Yale Law Journal.
x:
On the contrary, the 2nd Amendment is clear. It's the 9th, 10th, and 14th that are harder to interpret.
St Jacques:
I agree, but if you wouldn't mind I'd like to narrow that a bit further. It really is the 9th Amendment that is difficult to interpret. You certainly have reason to bring the 10th and 14th amendments into the picture here, given that so many path-breaking decisions of the Supreme Court over the past several decades have used those two as justification for rulings handed down. But have any recent cases of note clarified the 9th Amendment? It's there, so it must have meaning, but I don't recall any significant cases which used it.
The 9th is being used [without being refered to] in any case dealing with our unenumerated rights to privacy.
Niether the 9th, 10th, and 14th are hard to interpret, if your start with a Constitutional "presumption of liberty", as per Barnett:
"--- Since the adoption of the Constitution, courts have eliminated clause after clause that interfered with the exercise of government power.
This started early with the Necessary and Proper Clause, continued through Reconstruction with the destruction of the Privileges or Immunities Clause, and culminated in the post-New Deal Court that gutted the Commerce Clause and the scheme of enumerated powers affirmed in the Tenth Amendment, while greatly expanding the unwritten "police power" of the states.
All along, with sporadic exceptions, judges have ignored the Ninth Amendment. --"
Sample Chapter for Barnett, R.E.: Restoring the Lost Constitution: The Presumption of Liberty.
Address:http://www.pupress.princeton.edu/chapters/i7648.html
Rights are claimed, not bargained for.
Anyone who thinks this is a "good thing" is by definition the "Enemy".
Makes me wonder how it'd stack up against a G2 Contender chambered in 6.8 with a good muzzle break/tuned barrel.
m themselves. They also didn't feel that gun ownership should be completely unregulated, as made evident in their opening words "A well-regulated militia being necessary to the security of a free state . . ."
The word 'regulated' as used in the Second Amendment did NOT refer to government regulation. In the vernacular of our founding fathers, it meant 'capable'...it meant 'able'...well-trained.
I'm not much of a debator on this topic. To be, or not to be, is the only question one has to answer. End of debate.
The NFA is blatantly unConstitutional as it limits private ownership of the very type of arms necessary to formulate a militia unit.
Considering the NFA didn't come around until 1934, an 1870's case on the issue would be a little out of place.
Did "the people" intend to allow the state to disarm them? In a pig's eye.
Let me quote from an article at Guncite.com, which is a "pro-gun" (if I may use that term) site, very jealous of assaults on the 2nd Amendment:
". . . Likewise, the amendment does not protect the possession of fully automatic weapons, grenades, rocket launchers, flame throwers, artillery pieces, tanks, nuclear devices, and so on. Although such sophisticated devices of modern warfare do have military utility, they are not also useful for law enforcement or for self-protection, nor are they commonly possessed by law-abiding individuals. . . ."
Guncite.com is not commenting upon the way the law could or should be interpreted (they very much uphold gun owner's rights),
Bull.. -- They are 'commenting' that objects [arms] of military utility that can [as per the 2nd] commonly be possessed by law-abiding individuals can be prohibited by an act of Congress; supposedly because they are "not useful for law enforcement or for self-protection" [obviously false], -- "nor are they commonly possessed by law-abiding individuals" [a stupid 'begging' of the issue]. . .
they are merely stating the way the law is interpreted,
Again, "the way the law is interpreted" is the disputed issue.
The supposed 'law' is an unconstitutional deprivation of property [arms] without due process of law. [14th] -- Congress has no delegated power to prohibit arms. [10th]
and the fact that the ATF maintains its National Firearms Act Branch (see above) is the proof of this.
"Proof" of what? -- that the 2nd is being ignored?
Therefore the only limitations upon which arms a private individual can own are those defined under the National Firearms Act --- the law as I understand it recognizes no limits whatsoever to the right of an individual to possess firearms.
Yet you contend that fully automatic firearms, artillery pieces, tanks, grenades, rocket launchers, flame throwers, etc -- can be outright prohibited.
-- Are you aware that many people owned these objects perfectly legally prior to 1934 and still do? Are you aware that while reasonable regulations can be written to control use, there is no constitutional justification for total prohibitions on possession?
Hell, even nuclear, chemical & biological materials are possessed by individuals & companies.
And let me say to you as well Warthog, that I am NOT pro-gun control. I am merely commenting upon the law the way that it is.
And I will add that I am very comfortable that my neighbor cannot go out and purchase a 105 mm cannon and set it up in his front yard.
Why does this 'comfort' you?
Your re-enactor neighbor could [in many rural areas] set up a functional &'legal' muzzle loading cannon or mortar capable of doing massive damage far beyond his own property, and few rational people would blink an eye.
As Warthog said:
"--- whether the modern legislature has managed to pass unConstitutional abominations in a Court system that ignores the plain language and intent of the Constitution --" is not the question.
Why are you more 'comfortable' disarming your neighbor, [and why do you think you have the power to do so] -- that is the question.
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